U.S. Congress and Arizona Deliver One-Two Punch to Immigrants

This week, as Congress leaders retreated on the immigration issue, the Arizona House of Representatives advanced with a vengeance, passing a bill that amounts to a scorched earth policy by granting unprecedented powers to local police powers to stop, question, and detain people they suspect may be illegal immigrants. By failing to act on immigration reform, Washington is ceding authority to those who have more respect for guns and prisons than for human dignity.

In the nation's capital, Senate Majority Leader Harry Reid (D-NV) appeared to backpedal on a promise made over the weekend when he declared at a campaign rally, "We're going to have immigration reform now." On Tuesday, he appeared to stretch the definition of "now" by telling reporters, "We won't get to immigration reform this work period." At the same time, Sen. Lindsey Graham (R-SC), the leading Republican advocate of immigration reform also seemed to bury prospects for a comprehensive bill. "Immigration is going nowhere this year," Lindsey told Politico--even as the Arizona legislature was in full throttle devising its own immigration strategy.

And that's the way the nation's immigration policy, generally labeled "broken" by all sides of the political spectrum, gets made. As a result of Congressional inaction, Arizona, like states and municipalities around the country, is filling the vacuum by fashioning its own immigration policy, one that in the case of the Grand Canyon state is more redolent of the values of the Old West frontier days than the sensibilities of civil liberties advocates.

Emotions about the bill were particularly inflamed after the murder last month of rancher Robert Krentz not far from the border. Even though police have not named a suspect, the Krentz family has blamed "a suspected illegal alien" and the lack of border security for the killing. In Phoenix on Tuesday, as they voted in favor of the state's latest immigrant crackdown, one legislator after another in the Arizona state capitol invoked the murder as they rose to denounce Washington for its inability to keep migrants out. "The federal government has failed in helping this state seal its borders," said Republican David Gowan.

In a party-line, 35-21 vote, the legislators passed a Republican-supported bill expanding the power of police officers to go after illegal immigrants. In the language of the measure, "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person." The measure provides no instruction on what might constitute a "reasonable suspicion." And even though the bill does contain a caveat warning that a law enforcement official "may not solely consider race, color or national origin," the use of the word "solely" clearly does allow police officials to use race or color.

Alessandra Soler Meetze, executive director of the American Civil Liberties Union (ACLU) of Arizona, described the measure as "a green light to harass anyone who looks or sounds foreign." Tucson representative Daniel Patterson, a Democrat, described the proposed law as the "symbol of heavy handed government intrusion."

"We have many families in Arizona who are legal American citizens, who may speak Spanish, who may not look American to some people in Arizona," he said. "This could lead to profiling."

Civil libertarians believe that should the bill become law, the courts will eventually declare it unconstitutional. Another Arizona measure penalizing employers who knowingly hire illegal immigrants is currently pending before the U.S. Supreme Court on the challenge that states cannot pre-empt federal authority on immigration matters. That 2007 law was signed by then Arizona Governor Janet Napolitano, now Secretary of Homeland Security. At the time, Napolitano said the bill was necessary "because it is now abundantly clear that Congress finds itself incapable of coping with the comprehensive immigration reforms our country needs."

But now, as part of the Washington Establishment, Napolitano has faced criticism herself as part of an administration that has not more forcefully pushed to secure the comprehensive immigration reform she advocated as governor.

That failure has had a cascading effect. In the absence of humane reform policies, the default federal immigration policy has enforcement as its centerpiece, as it has been since the Reagan administration. Successive presidents, including the current one, have built an increasingly hefty immigration enforcement bureaucracy, but it has proved a poor match for the addiction of America's employers to migrant labor. Even as they met the need, millions of people who became part of the fabric of American society labor were, by turns welcomed, and--increasingly in this economy--reviled. Hence, the rise in the number of local and state governments that took immigration policy into their own hands. In 2009, according to the National Conference of State Legislatures, state governments considered and enacted record levels of immigrant-related legislation, with 222 laws enacted and 131 resolutions adopted in 48 states. Arizona adopted nine immigration laws.

The big national immigration-related headline may be the Washington stalemate, with states such as Arizona featured occasionally for their curiosity value. But the absence of a coherent, comprehensive immigration strategy has led to inexorable policy trajectories on both the national and local scenes that have emphasized enforcement first. And immigrants are taking it on the chin.

Jeffrey Kaye is a veteran journalist and author. He is the author of Moving Millions: How Coyote Capitalism Fuels Global Immigration (Wiley).